Sunday, July 30, 2006

Every society needs taboos, things decent people don't debate. The efficacy of torture is no longer one of those taboo subjects -- the Bush administration has made it debatable. Belgravia reports on efforts by John Podheretz to normalize genocide:

What if the tactical mistake we made in Iraq was that we didn't kill enough Sunnis in the early going to intimidate them and make them so afraid of us they would go along with anything? Wasn't the survival of Sunni men between the ages of 15 and 35 the reason there was an insurgency and the basic cause of the sectarian violence now? [Emphasis added.]

Glenn Reynolds "wonders" whether Israel is being "too nice" by not committing genocide in Lebanon now.

These are two of the most influential (if not interesting) pundits on the neoconservative right. We are in for some dark times.

The Pithlord, being a selfish sort, is upset about all the time he wasted over the last four years arguing against the "humanitarian" justification for the war in Iraq. I could have been doing something more useful, like crosswords or basket weaving. The reason for war in Iraq was never humanitarian (and it wasn't really about permanent bases or oil, either). It was always just tribal revenge.

Saturday, July 29, 2006

Having been recently accused of pacifism and having only partly denied it, I think it is time to unveil Pith & Substance's overall political philosophy of presumptive anarcho-pacifism (or PAP, for short).

Lawyers are big on burdens of proof, and shifting them, so the reader will forgive me if I employ that kind of talk.

Basically, the philsophy is that, absent some good reason to the contrary, pacifists and anarchists are right. Unlike those proposing war and state action, they don't need to have good arguments (which is a good thing, because they are mostly too stoned to come up with any).

Unlike an AP, a PAP recognizes that sometimes (the exceptional time), the call for war or state action is correct. Taxes may be levied, regulations passed, even wars started. But a PAPpy is always suspicious of the reasons given, and never pretends to be symmetrically suspicious of not regulating, not taxing or not blowing things up. Naturally, the call for domestic democratically-acceptable state action faces a less severe normative hurdle than bombing foreigners.

PAPists have been known to invoke the subsidiarity and just war traditions in support of their presumptions.

The tabloids will be all over this one. Apparently, a plaintiff who obtains an Anton Pillar order and whose solicitors thereby, through lack of care, get access to a defendant's privileged documents bear the burden of showing that the defendant was not prejudiced in order to avoid an application to have said counsel removed from the case. The burden of proof is not, as the Court of Appeal mistakenly held, on the innocent defendant.

SCC to Bay Street Boys: if we are going to hammer cops who screw up search warrants in the control of crime, we are going to hammer you if you screw up on coercive searches in the pursuit of commercial litigation.

I'd say this is a big, "What was the Court of Appeal thinking?" one. Thumbs up.

Every collective bargaining law in Canada provides that employers who continue operating unionized businesses can be named "successor employers", and thereby inherit collective obligations to unionized employees, even if the new corporate vehicle for the business is technically or legally distinct from the original employer. Just because a sale of a business is arranged as an asset-purchase transaction rather than a share-purchase transaction should not deprive the employees of their statutory right to collective bargaining. These rules reflect the reality that labour relations in a Wagner-act system is not really purely contractual, and does not cohere well with ordinary corporate law concepts. But were it any other way, any employer could get out of its statutory obligations to engage with its certified union by rather simple corporate transactions.

The existence of a "successor employer" provision shows that the Wagner-act system of collective bargaining gives employees a right to a certain kind of represenation in the enterprise (which the Pithlord views as a real community), not in the corporation (which is just a legal fiction, albeit a convenient one).

Corporate insolvency also raises issues about the continuation of the collective agreement and of the rights of the certified union. In the Pithlord's view, the creditors have no right to interfere with the prospective relationship between the union and the enterprise, since their contractual relationship is with the corporation.

In GMAC, the Supremes (with one exception) all agreed that the Bankruptcy and Insolvency Act does not interfere with the jurisdiction of provincial labour boards to make successor employer designations, and tha there is nothing wrong with sticking bankruptcy trustees who run businesses upon coprorate insolvency with the obligations of a unionized employer. Although Parliament could restrict union rights in an insolvency, it has to do so in clear words.

This strokes the Pithlord's sweet spots, since I am both pro-union and pro-provincial jurisdiction. Anyway, it's the right decision. Thumbs up.

When it comes right down to war-gore imagery, I s'pose I could trot out the photo of the bombed Israeli bus from, oh, '99 or thereabouts; believe it was the seventh round of the intifada or so. The contorted, smeared and fractional human remains in that particular argument-ender appeared doubly macabre, because the roof of the bus had been vapourised, and the dead passengers could be seen all... leaning back, it seemed, from the detonation point near the steering wheel, as though the vehicle had suddenly, terrifically accelerated.

Can't remember where I saw this photo; seems to me it was a newspaper. But it may well have been the "rightist" equivalent of the dripping-red-letters website P&S linked to today; perhaps the percussively-repeated caption used was "Land for peace? Land for Peace?! LAND FOR PEACE??" Doesn't matter. Agitators and true believers somewhere deployed those dead civilians, holding the photo of their splattered end to as many pairs of eyes as possible. The aim: to win their war. Well, fair enough; part of the modern arsenal; it's not like images of flayed babies, halved shopkeepers and charred housewives are objectively worse than the events they capture, if you see what I mean. I disagree with those who say we shouldn't look at the real essence of war, on grounds of taste or discretion or respect, or whatever; everyone should look, everyone from every side, in every conflict, from now until the end of vision (which'll arrive before the end of war, mark me.)

The Israelis, in this case, should look at the gore and human wreckage in Lebanon, look hard at the dismembered babies, the dust-blasted, bloated faces of dead innocent grandmothers; and then they should refuel their fighter jets, man every tank, and keep attacking, attacking, attacking in south Lebanon and Gaza too, until every Hezbollah and Hamas man is dead, fled or captured, and every Qassam missile, packet of C4 and AK-47 is broken, buried and unreplaceable.

The literatus is right that pictures of mangled bodies prove nothing, and signify everything. They can mean, "We won't let this be done to us" or "We won't do this." And just wars look as ugly as unjust ones -- the death of a soldier in the Wehrmacht in open combat was the killing of some conscript mother's child. All true.

Before I get to the rational argument in response to "attacking, attacking, attacking ... until every Hezbollah and Hamas man is dead", though, we need to discuss what rationality means in these circumstances. And the literatus has something to say about that:

I don't want to get too political here, [P.], believe it or not; I'm looking to push you a bit on the dead-baby-photo linking --- as to who's "right" or "wrong" here, you know where I stand -- let me just quickly say, some brutality and vehemence in the right places, I believe, some * warnings,* the clarity of blood, may be our only hope of changing enough minds in Tehran, Damascus and Karachi to stop the clash o' civs that could otherwise develop. I know Riyadh and Cairo and Tripoli have got it, chum; I think I've got it; have you got it...? Or are you still relying on dialogue and understanding? I don't think this is the fuse leading to World-Wide-Web-War, Next Chapter, in other words; I think these attacks are stepping on that spark. Here's a thing you can't make an image of: the future lives, families and nations saved by prompt, ruthless, callous, warmaking.

As I said, the literatus wrote this a week ago, when it was still possible to imagine that "Riyadh" and "Cairo" could represent something important, before the entire Arab world -- Sunni, Shi'ite and even Christian -- made it clear which side their dictators had better be on.

The lesson here isn't that the literatus erred in his future-telling -- the Pithlord knows that having even an irregular blog puts too many hostages to fortune to get snooty about that. The lesson is that certain violence now for uncertain benefits of peace in the future is a trade too easily made. The best rhetoric for those who would sacrifice one generation for the one after it comes from Trotsky, particularly in Terrorism and Communism, written at the height of his power two decades before the ice pick.

The leaders of Israel, as with the rest of us, have no way of knowing what the indirect, ultimate consequences of this will be. But they are responsible for the direct, immediate ones.

But here's the thing, [name redacted], God, I have a heart. War is disgusting, on so many more levels than just a picture of a toddler with his spinal column ripped apart by shrapnel, grievous and repellent though that image -- that fact -- is, by itself. Whether it's by sword, artillery shell, suicide attack, tank battle, or atom bomb, war is the devourer of the souls of its victims and perpetrators, the eater of their humanity and individualism; war is the self-perpetuating system of weights that pulls us back down into the muck from which we so recently and partially ascended. It can't be done cleanly, simply, surgically or well, especially in the 21st century. Yeah: war sucks. It's important to hate it. These photos from Lebanon are the latest confirmation of this obvious fact. (What is the size of a hypothetical file, opened at the dawn of photography, that contains all images of all those killed in war? That's a long download, bud.)

Here's a thing that's worse than war, though: pretending it doesn't exist. Closing your eyes and hoping it goes away. Getting on your knees and presenting your throat to be cut. Surrendering your self, your family and your nation to this world's armies of evil, because you can't bear the thought of graveyards filling with the innocents who will die if you retaliate with strength. The only thing more sickening than war, I mean, is pacifism; is meekness and squeamishness; is the infantile, finger-crossing hope that good men will never need recourse to arms; [...]

Sure, some pacifists are undoubtedly meek and squeamish. But the idea as such doesn't strike me that way. A real pacifist is inhumanly ruthless -- prepared to tell parents who have seen their daughters raped that they cannot strike back, prepared to suppress every human emotion of justice and revenge. Quite possibly, they are right -- that nothing in either past or future justifies this present killing.

I can't join the pacifists, though. I suspect real pacifism requires the belief in a pretty bloody and activist God, and I'm not ready for such a fellow. What I do believe in, though, is what the literatus attacks next:

[...]is the even- more babyish notion that war might be conducted in such a way that only soldiers die. (War does not operate that way; never has; and it may be that the men who drafted the Geneva Convention could not conceive of an Islamist enemy who'd make the Nazis look like gentlemen. What's the deal with the Geneva idealists, anyway...? Seems like they could not possibly have been soldiers.)

As per your blog, though, G., I guess what I want to say is that lining up that website full of ghastliness, as though in itself it proved, supported or substantiated your position about "the rape of Lebanon," seems a bit, ah, histrionic, or undignified: it's beneath you. I hasten to reiterate, let's not ban such photos; they do serve a moral purpose. But in this context, we have a disagreement, clearly, should I just respond with .jpegs of the eight IDF corpses the Party of God's unexpected sortie left behind (God -- just last week) or show you the agony on the smashed faces at Haifa railway station? What would be the fucking point? You start swapping pictures of the Horrors The Other Side Has Visited Upon Our Side, you wind up quickly in a corner with the retarded fanatics whose "thinking" on the situation is, basically, just an ever-escalating exchange of exclamation marks ("!" "!!" "Oh yeah? !!!!") That's all war-dead images are, really. They can leave you reeling, Lord knows; but they cannot help nor pardon...

I'm just sick, I guess, of the "well, what about this" moral-equivalency approach to the fearsome puzzle of the Middle East, and its jihadi dimension. Sick of elaborate "root-causes" chatter that goes on and on, till it disappears up its own nuanced, sophisticated asshole, being too cosmopolitan for proximate causes like act-of-war Hamas/Hezbollah attacks on Israeli soil.

I'm not a pacifist, but I am a believer in chatter. Law is just the principle that force must be justified by chatter. (That definition doesn't require a sovereign, so it allows for international law.) Since we don't actually have the activist and bloody-minded God, we can't do without human-applied force. But we can't trust that force, we can't hope for the day when that force ends the endless talk about consociational cabinets, buffer zones and verification procedures. It's really that desire to end the chatter that I distrust. It's really the hope to subordinate the use of force to procedure that I look to.

Ironically, the Bush administration has been using the "root causes" phrase to justify the Israeli attack (the "root cause" being Hezbollah's being armed). That isn't totally mistaken, but once we start talking about root causes, we have to be willing to listen to other versions of what those causes might be. When Israel invaded Lebanon the first time, Hezbollah was nothing -- neither a significant representative of the Lebanese Shi'ites nor a serious military force. Hamas was initially encouraged by Israeli intelligence as a counter to the PLO. Not that that means that Hezbollah or Hamas are Israel's fault. The Arab world has to take responsibility for its own lack of political maturity, for messing its own bed. But how can we be confident about the consequences of this action?

I claim no originality in the observation that everything the US (and now Israel) have done in the last four years has increased the influence of Iran and Hezbollah.

What the administration thinks, of course, is irrelevant. The court has ruled that Article 3 applies.

Unfortunately, while that is true as a matter of international law (the US will continue to be bound by Article 3 and will therefore be violating its international obligations when it violates Article 3), it is not true as a matter of domestic law (if Congress authorizes the violation of a treaty, no court will enforce the treaty.

I'm not a pacifist. There would have been nothing wrong with Israel reacting to the killing and capturing of its soldiers with a limited reprisal of similar magnitude. Bombing Beirut and turning a large fraction of the people of Lebanon into homeless refugees is different. As Engels remarked, at a certain point quantity becomes quality, and "reprisal" becomes aggression.

I don't really think these concepts are that hard to grasp, and I have no doubt that they would be applied with ease to wars between Ethiopia and its neighbours (if the world were to bestir itself enough to pay the least attention to Africa). The response, in my experience is always to list Hezbollah's bad actions in the past, point out that they have a medieval ideology and question their presence as an accepted part of Lebanese politics.

Hezbollah is the main representative of the Shi'ite Muslim population in Lebanon. Its only rival in that respect, Amal, is supportive of its war with Israel. The US and Canada's response is based on false analogies to the Cold War and the thirties. Our elites tend to think in terms of ideological, rather than ethnic/territorial, conflict. In an ideological conflict, you can envision total victory without the annihilation of the other side. The West had no conflict with the members of the Warsaw Pact that could not be resolved by their ceasing to be Communist. (At least, we used to think so -- in reality, there are probably continuing issues with Russia that go back to the Tsars and will outlast Putin.)

But it is just a category error to think that way about the Middle East. Unless they are physically massacred, Palestinians and Shi'ites are always going to be around, and they are always going to have interests that conflict with others. They might choose more moderate leaders, but only if it looks like their ethnic interests can be better advanced peacefully. Democracy isn't going to help. Liberalism isn't going to be possible unless the underlying issues are made more tractable. So waving the bloody shirt of 1938 is just making matters worse.

A useful analogy might be Fianna Fail or, more recently, Sinn Fenn or for that matter, the Likud Party. All had a terrorist phase. All now participate in democratic Parliaments. The world deals with this. It also deals with former Communists in democratic coalitions in Eastern Europe, "post-fascists" in the Berlusconi coalition in Italy, ex-FLQ sympathisers in the Governor General's mansion in Ottawa and many more examples. It is, frankly, pretty hard to have a new democracy without involving politicians who were either terrorist insurgents or part of the authoritarian power structure in their previous lives. It would certainly be impossible in Lebanon. Asking Lebanon to exclude Hezbollah from its governing structures is really asking is for Lebanon never to have a stable government, which is asking too much.

Israel has a clear and legitimate interest in getting Hezbollah to stop being terrorist, preferably permanently.

Here I have to agree wholeheartedly. The problem is that the political organization a majority of Lebanese Shi'ites think will best defend their interests engages in terrorist acts and has a program of medieval repression. What we should want is that either (a) all but a few Lebanese Shi'ites abandon Hezbollah as the vehicle of their political representation or (b) that Hezbollah become like Fianna Fail.

How can this be done? Well, the key is to recognize that all terrorists want to be respected elder statespersons in their old age. They want to be invited to the right parties, hob nob with movie stars and do "consulting" work for Google. That's why God invented the House of Lords - to put past firebrand radicals in it.

Now we can't make them stop being terrorists by giving them everything they want -- they will conclude that the way to get what they want is to be terrorists. When they act badly, they ought to experience some pain. But when they become more bourgeois, they get treated as more respectable. Some true militants may not follow the lure of the tempter here, but they will probably be isolated and quietly bumped off to no one's great dismay.

Alternatively, the organization as a whole tries to stay pure, but loses its base of support to more mundane politicians who find out ways to get patronage and material benefits to their constituents. If it doesn't move, pave it; if it does, pension it.

All of this will happen if the dynamic is one of mutual backscratching and gains from trade. The opposite happens when a polarizing dynamic gets going. Then extremists feed off each other, and it is the moderates who end up getting bumped off. Each outrage has to be bigger than the last. Extremists on each side are objectively aligned with each other, and assist in ensuring that the backscratching and House of Lords appointments never really get on the road.

Did Israel have options? Sure. It could have put diplomatic pressure on the Lebanese government to put pressure on Hezbollah. Do we know this would have worked? No. Do all diplomatic moves depend ultimately on a willingness to use force? Yes. But we don't know because Israel didn't try.

The probable explanation is the internal politics of Israel. Ha'aretz reports that the cabinet (which, for Israel, is unusually dominated by people with no military experience) didn't ask any real questions of their military advisors, who simply dusted off an old plan for the invasion of Lebanon. Kadima clearly faces pressure from its right. So what we end up with is a disproportionate response.

I don't deny that Israel has its own security needs, and these have to be respected. But it has (a) nuclear weapons; (b) the backing of the world's foremost superpower; (c) control of the overwhelming majority of the territory of Mandate Palestine and (d) an advanced technological economy and military. Lebanon, on the other hand, is a fractured country just trying to rebuild itself after three decades of civil war and foreign occupation. The balance shifts to Lebanon's security needs, which, of course, have been trampled underfoot.

What about our own politicians? What should they do? They should shut up, get Canadian nationals out, and quietly let it be known that they are available to mediate should the parties want them to. What they should not do is treat ethnic conflict like ideological conflict, since that is the road to permanent war and possibly genocide.

Monday, July 24, 2006

If a criminal trial is the supreme expression of distrust in our own state, the extradition hearing is all about ambivalence about our neighbours. We aren't supposed to enter into extradition treaties with states that don't give fair trials. At the same time, we do require a judge to give some scrutiny to the charges and the evidence for them before we let someone lawfully here face another legal system. Even after the judge has passed on the matter, the Feds retain some executive discretion, which is subject to the constitutional requirement that extradition not be permitted if the punishment in the receiving state would shock the Canadian conscience.

In short, there are some tricky questions in extradition, since we are simultaneously acknowledging the rights of other countries to punish for crimes committed by people now within our borders, but putting some limits on that right.

The case goes under the name Ferras, although there were a number of other alleged miscreants in each of the two sets of appeals. Ferras allegedly ran a "boiler room" scam. Leroy "Scabby" Latty and Lynval "Frankie" Wright helped cement the unity of the Anglosphere by co-ordinating the transportation of coke between London and New York by American Airline stewardesses out of an operation in Toronto.

Section 7 of the Charter guarantees the application of "the principles of fundamental justice" to any deprivation of "life, liberty and security of the person." There is no doubt that this includes extradition. The principles of fundamental justice give the courts abundant wiggle room to ensure that procedures are up to snuff. (What they don't do -- properly and historically understood -- is give the courts the right to interfere in substantive policy choices as in Chaoulli.)

The McLachlin Court uses this leeway as follows:

a. To override a strange 1970s-era decision that prevented the extradition hearing judge from providing any scrutiny to the "evidence" provided in favour of guilt. Now, the judge is to decide whether the evidence is enough that a properly instructed Canadian jury could convict on the parallel offence in Canada.

b. To require the foreign governments to certify that the evidence used to justify extradition is available for the trial in the receiving country.

At the same time, they upheld the use of hearsay, kept the threshold for sufficiency of evidence low and ridiculed the idea that foreign governments have to give the 2-for-1 recognition of pre-trial custody Canadian courts do.

I see Ferras as representing the style of the McLachlin court at its best: very pragmatic and open to discussion of the underlying policy tensions. There are some problems with this style - it may encourage excessive innovation in the law and too much abstract law clerky discussion. I was a bit troubled by the fact that the case hardly comes to grip with the facts at all until a few paragraphs near the end. That isn't my understanding of how common law jurisprudence is supposed to work. (More on this later.)

But the middle-of-the-road policy-laden approach seems appropriate for constitutionality of extradition procedures, and I think the resulting compromise is sensible enough, so I'm going to give the coveted Pith & Substance Thumbs Up.

Friday, July 21, 2006

Like publius, I've always been interested in process-based theories of constitutional law (as represented by our mutual hero John Hart Ely).

Many people complain that process theories ignore the substantive values protected by a constitution - liberty, property, privacy, substantive equality. Others point out that in judicial review as it is actually practiced, the courts eventually get around to a cost-benefit analysis of some kind, anyway, so why not just admit that up front?

Search law might seem like good terrain for the critics. The cases revolve around two substantive values - crime control and privacy. And the courts tend to make cost-benefit judgments: language about exigency, necessity and seriousness of the intrusion is everywhere. That sounds a lot like lawyer talk for deciding whether the costs to the state of a rule outweigh the benefits to the individual or vice versa.

But looking up the leading Canadian search cases for work, I was struck by how well they fit in a legal process framework.

The first principle is that the courts require specific legislative authorization of whatever search is at issue. Under s. 8, "not authorized by law" necessarily means "unreasonable." With minor exceptions, the law that authorizes the search has to be legislatively enacted. This has the "democracy forcing" quality of requiring legislative approval (which, in Canada, effectively just means requiring the executive to act relatively openly - in the US, it would have the further effect of requiring the collaboration of independent politicians).

In Hunter, the SCC insisted that laws authorizing searches should normally include a requirement for "prior judicial authorization" to show reasonable and probable grounds to believe that an offence had taken place. This proved to be unworkable. A health inspection of a restaurant is a search, as is a municipal building inspection - few outside the libertarian fringe seriously want to require that these occur only with a warrant. The tendency of the courts was to make a distinction between criminal law searches and "mere" regulatory ones. This was misguided. The purpose of section 8 (as opposed to one of the costs of it) is not to get criminals off, but to protect privacy. My privacy is just as affected if a by-law enforcement officer ransacks my house as if a cop does. If anything, more serious offences justify greater intrusions. In the event, the court was faced with the problem of random drunk-driving stops. These are clearly criminal, but the court could hardly strike them down.

The better distinction would have been between searches imposed on everyone equally (or tacitly consented to in the case of a regulated business), as opposed to discretionary searches. If the public as a whole is willing to have random spot checks of drivers, then there is no reason for the court to interfere. The same people suffering the burden on their privacy chose the restriction. On the other hand, searches imposed on teenage boys (and, most frequently, black and native boys) are imposed by a different group than those who have to put up with them. It doesn't necessarily mean they are unjustified, but it calls for greater scrutiny and procedural road blocks and so on.

If search law is all Ely-ian (or would make more sense if it were), then that should be counted for the team.

Thursday, July 20, 2006

It ought to be to protect the lives of Canadian nationals. If he could avoid fuelling dangerous "war of civilization" fantasies, that would be a bonus.

Here is a website with horrific pictures of the rape of Lebanon. You can sign an online petition for all the good it will do. Better for Canadians to write their MPs. The Tories should be brought down on this. Quebec might vote for lower federal taxes, but I have faith it will never vote for this.

It is often assumed that democracies should be judged differently in their external actions than non-democracies, but I have yet to see an actual argument why that is so.

The Persian Wars don't help -- frankly, I don’t think "fear society" and "free society" is a useful division in antiquity (the Hebrew Scriptures seem pretty clear that the Persians were a lot better than the Greeks in respecting Jewish religious liberties), but what could be more of a "fear society" than Sparta? Sparta and Athens ally against the Persians basically out of the same motivation that the Sunni Muslim Brotherhood and liberal Arabs have for cheering Hezbollah -- ethnic solidarity against a foreigner they perceive as bent on ruling over them.

Thucydides is pretty darn clear that Athens, however internally democratic, was brutal with its allies. The Melian Dialogue in Book 5 of the Peloponnesian War, however unlikely as a record of actual speeches, shows what Athens was capable of.

In more modern times, there have been plenty of peoples who are internally liberal, but brutal -- even genocidal -- to those they exploit. Belgium in the Congo, the British in Tasmania or Ireland, America in the Philippines.

It is a huge mistake to interpret a fundamentally ethnic conflict about land -- blood and soil -- as an ideological conflict about systems of government. Israel, sensibly enough, does not want to see a democracy in Jordan or Egypt. A more democratic Turkey has been a huge complication in its relations with its former close ally, as of course was the overthrow of the Shah. And I believe there was a relatively free election in the Occupied Territories recently -- does anyone remember what happened there?

Anyway, Lebanon is a democratic -- if disordered -- state. The IDF is flattening whole villages, destroying civilian infrastructure well outside territory controlled by Hezbollah, and basically treating the Lebanese population as a whole as enemies, as the reaction of traditionally pro-Israel Maronites shows.

In response to Ross Douthat's interesting comments on the argument de chickenhawk, I get into a less interesting argument with a fellow called "J. Bradford Short". At one point, he says I'm "self-righteous", which hurts a bit since I'm going for more the smug and condescending vibe. Anyway, comments addressing my insecurity are welcome: do I look self-righteous?

A Self-Promotional Update You Have No Reason to Care About: Figuring out that the ludicrous "Kantian nihilist" construction in Chris Muir's Doonesbury-in-its-senility-for-righties-with-T&A is evidence of Randroidery -- Pithlord! And I wasn't ever even slightly Randian, one of the few points of pride I can have in my adolscent political development.

Where he got the idea that Kant was a "moral relativist" is beyond me. Surely, if you have even heard of Kant, you have heard of the "categorical imperative." Even if you don't know what that means, it doesn't really sound "relativist", does it?

Actually, though, I think there is something illustrative here. For the jingoist right, a "relativist" is one who thinks there are absolute moral standards which apply both to our team and the enemy! In other words, to them it means exactly the opposite of what it means.

Wednesday, July 19, 2006

Yes, yes, I know, but I like this comment from the prolific John Emerson too much not to do something with it:

At a certain point in the Italian civil wars the Guelphs and the Ghibellines had split and switched enough times that it was hard to tell who was who any more.

A lot of us left-liberal democrats here in Bushworld are actually wondering whether it's true that democracy is no damn good -- our elected President is an adventurist, Know-nothing, populist demagogue who uses the Revelation of John as a handbook for predicting the future.

But when we decide to surrender and submit ourselves to re-education, we find that our former Straussian friends are all errand-boys for Dubya now.

Another plug for George Grant -- he never became an errand-boy for Dubya!

I'm afraid I don't know the full story of Grant's relationship with the Straussians, a tale I would be delighted if someone would tell. He was obviously influenced by Strauss's writings on Xenephon's Hiero, and, generally, by the attention to classical political philosophy and the loss of the question of how the state might promote virtue.

Accroding to Grant, Strauss and the Straussians cast their lot with America -- based as it was on the British Enlightenments's narrow and egotistic view of human nature -- over the Soviet bloc -- based on the historicized eschatology of Rousseau, Hegel and Marx -- without fully rejecting Heidegger's equivalence of the two. Strauss thought that the American way left some room for philosophizing. Grant was more Heideggerian in this respect, although he rejected Heidegger's account of Plato and Christianity.

Grant interpreted Strauss as recognizing that the idea of America contained the seeds of a universal, homogenous tyranny which would make philosophy and genuine religion impossible. It is certainly interesting that the Straussians (with the exception of Fukuyama) seem now to be the ones most militant in promoting a global liberal-democratic-capitalist framework. Perhaps they think that lots of war will bring back pre-bourgeois virtues.

Monday, July 17, 2006

Even though we are skeptical of judicial power here at Pith & Substance, we admire brave and wise uses of it. For this reason, I've long considered Aharon Barak, the recently departed President of Israel's Supreme Court a judicial hero. There's no doubt that his work and thought intersect closely with our various themes here at P&S - judicial power, thick identity in a liberal nation state, the difficulties of the virtue of the rule of law in a polity threatened by terrorism -- all of these questions have had to be addressed at a practical level by the Israeli judiciary in circumstances of a genuine existential threat.

Without purporting to be an expert, I understand that Israel's court has been influenced by Canadian approaches to the Charter. I suspect that the influence is going to be the other direction as our courts have to grapple increasingly with national security issues we have been fortunate enough to be able to ignore for the most part in the past.

So I'm going to have to read Barak's new book, The Judge in a Democracy. Of course, I have some other reading I have to do in a more practical sense, so it might be a while, but when I get to it, I promise at least one P&S post.

When I was a child blogger, my pappy told me, "Never become one of those what just links to other folkses sites and says 'Read the whole thing' or 'Indeed' or, most distressin' of all, 'Heh' 'cause I don't wants to know ya if ya do." Rather, I think that's what he said, although he can be a bit incoherent after the third bottle of merlot.

Update: Matthew Shugart points out in the comments that even the Israeli left supports a limited reprisal against military targets in Syria as a more proportionate response to Hezbollah's abduction of the soldiers. That seems like a reasonable approach if, as seems likely, Syria is behind Hezbollah's actions. I have to admit to a blogging sin in that I didn't read the Oren article, but just the DeLong post, and if that is what Oren is proposing, then I apologize.

Update 2: Well, I read the piece and I shoulda listened to my pappy. Oren proposes taking out a 500 tank armoured unit in Syria. Whether this is feasible and sensible is beyond even my Internet-rules expertise to say, but it obviously does not deserve the snark DeLong and then the Pithlord engaged in. I'll leave this post up as a lesson in not following through on the links.

Sunday, July 16, 2006

The Pithlord is old enough to remember much hoopla in the blogosphere about the Lebanese Cedar Revolution of 2005. Crowds peacefully protesting the assassination of their Prime Minister, an event everyone thought Syria was responsible for, led to genuine national independence for that troubled country.

The hoopla was understandable, although in Glenn Reynolds hands, a bit embarrassing (the Pithlord has nothing against geeky adolescent male autosexuality, but he thinks it should be kept under the mattresses of the funky-smelling bedrooms of the nation and not confused with political analysis).

But what happens now that post-Cedar Revolution Lebanon is attacked. What are the knights boldly standing for the right of hot Lebanese women to party without foreign occupation saying nowadays?

After the excitement of the Cedar Revolution, this is depressing, of course. But it's interesting to see that many Lebanese are angry at Hezbollah, and of course getting Syrian influence out of Lebanon was one of the main points of the Cedar Revolution, and something that was only partially accomplished. The Israelis may finish what the Lebanese started, and that would be a good thing.

In short, the Lebanese like having their airports bombed. It furthers the Revolution.

The Pithlord noticed that no actual Lebanese were quoted, of course. And it does seem out of keeping with what we know of human nature, although we all recall how New Yorkers reacted to 9/11 with delight because it might finish the struggle against the Republican Party.

But what I really wonder about is when all the gun-nut "libertarian" techno-nationalists started sounding like commies? The "Revolution" as an abstract noun, the interests of the people furthered by repressing said people, the unfolding of human history as justification for squalid massacres... where have we seen this movie before?

After 9/11, Americans would have better off admitting to themselves that they were feeling tribal bloodlust, and wanted to punish Arabs for what Arabs had done to them. That's human enough. I really believe Americans would be too civilized to act on this impulse if they had been willing to recognize it. But to pretend that what they wanted was to bring democracy to the Arab world, to "liberate" -- that was folly. And it was folly for those like Makiya who believed it.

I think Kaufmann gives to little attention to the view that the dominant ethnicity in both countries just extended its self-definition over time (continuously with earlier processes by which Huegenots became English or Dutch became "old Americans").

Also, I'd like more on the actual current "vertical mosaic". The US is far less WASPy than English Canada, but Kennedy remains the only non-WASP in the oval office. The names of 2008, with the exception of Giuliani, could come from the Continental Congress -- Rodham Clinton, Clark, Gore, McCain, Romney, Allen, Bush. Pretty good representation from an eighth of the population. Some decline.

Pith & Substance is always on the look out for that contrarian sweet spot where both left and right can be shown to be guilty of the same error, providing said contrarian with that smug sense of superiority we so desperately crave. This looks to be an opportunity.

Deterrence just means aligning incentives so that some very bad course of action -- braining somebody with a pool ball, say, or nuking Tokyo -- has costs to the person who might do it. The law of demand tells us that a course of action that has higher costs for the actor is one that is less likely to be taken.

Now, the principle that greater expected costs of an action will make it less likely ceteis paribus does involve the idea that the actor is, in some sense, rational. Conservative hawks think this is an excessively nice thing to say about Kim Jong Il, while liberal criminologists think it is a horribly mean thing to say about teenage miscreants. Even someone with less at stake -- the proverbial median voter on the Clapham omnibus -- might think experience puts in doubt the idea that fifteen-year-old boys and all-powerful hereditary Commie dictators guide their actions by the light of sweet reason.

This is where the much misused principles of Darwinian selection come in handy. As John Maynard Smith made us aware, rationality of the relevant sort (optimization of marginal benefit and cost, pursuit of Nash equilibria and so on) is the birthright not just of ponderous German philosophers, but of fungi and pond scum. While there are other, more hoity-toity sense of "rationality" and "reasonableness" -- and the Pithlord has no quarrel with these -- what holds for intestinal fauna holds for megalomaniacs and testosterone addled YOs. Sure, their vision of benefits and of expected costs may be a bit addled -- but all other things being equal, they still optimize on the margin.

Nobody seems to have a big moral objection to deterring rogue states, but there does seem to be a sense that the truly compassionate would not try to deter youth crime. Since a deterred youth crime is one that doesn't happen -- thereby saving both victim and perp some grief -- I don't get this on utilitarian grounds. I recognize that the folly of youth is a legitimately mitigating factor, but it seems to me that deterrence is the most humane rationale for the system. We don't know whether B.W.P. could have been deterred from terminating the life of his victim, but it would have been a good thing for both of them, so it is hard to see why a responsible government would enact legislation saying that such an objective is to be rigorously dismissed from consideration.

Friday, July 14, 2006

The Pithlord, like most denizens of the Internets, has observed the "Yglesias rule" -- that any post about Israel is bound to generate an awful comment thread. Distinctions that would easily be made when discussing a war between Ethiopia and Eritrea or ethnic conflict on Fiji are completely lost. Fortunately, the Pithlord is, as yet, not exactly besieged with comments. And it has gotten to the point where it is difficult not to comment.

My strategy will be not to attack the extremist lunatics on each side of the issue, but to attack the reasonable, humane, moderate people instead. Not that they aren't right that Israel and the Palestinians need to come to a two-state deal based on the 1967 borders sooner or later, and better sooner than later. Nor are they wrong that the extremists on each side are objectively allied in ensuring that this never happens. Nor is anyone wrong that prospects for a reasonable solution look about as bleak right now as any time in the Pithlord's lifetime.

The trouble is with the argument that bombing the Beirut airport, Lebanese highways, residential areas and a power plant "is not in Israel's strategic long-term interests." That may be so, although it is questionable that moderate, reasonable Western pundits have some particular insight into these interests denied the Israeli government and the main opposition party. But it is irrelevant. If Ethiopia were to launch an equally disproportionate strike against Eritrea, we wouldn't talk about Ethiopian interests. We would say that such an attack -- dubious even in a just war -- is aggression against a sovereign nation with which Israel has no cause to be at war. Invading Afghanistan in 1979 wasn't in the Soviet Union's interest, but that's not what we talked about.

Thursday, July 13, 2006

Those quibblers working in the cottage industry caused by the fallout from Adscam and Gomery will be busy today. The Chief Justice released a decision setting out the elements of criminal breach of trust by a public officer. The result is good news for those public officials who have done something mildly dodgy, but without dishonest intent.

Denis Boulanger, the directeur de la sécurité publique for Varennes, faced a problem everyone with teenage children will be sympathetic to. His daughter got in an accident. The investigating officer's original report wasn't clear about who was at fault. So M. Boulanger suggested that another "more complete" report be done. His suggestion may have had more force than that of most concerned fathers in that he was the officer's supervisor. In any event, a "supplementary" report was drawn up which cleared Mademoiselle Boulanger of any fault in the accident.

M. Boulanger was not acting in accordance with the stringent demands of the police ethics. But did he commit a criminal breach of trust? The trial judge found that his actions were an "error in judgment." For the most part, the criminal law doesn't concern itself with errors in judgment, but this particular offence has been a bit confused on the subject, no doubt to the delight of special prosecutors everywhere.

McLachlin, after an apparently learned discussion of the common law roots of the offence, set out a crisp 5-point test for when the offence is made out. The key points are that the departure from the standard of conduct that the public official is supposed to engage in has to be marked, and the public official has to have acted with the intention of using the public office for a dishonest, partial, corrupt or oppressive purpose.

The effect will be to make the prosecution of this offence more difficult. But that's appropriate since the criminal law should be confined to really, really bad, intentionally bad, stuff. Also, everyone should feel free to make stringent civil ethical rules without criminalizing everybody.

Wednesday, July 12, 2006

The dilemma is common to all asymmetrical federalism schemes, including the one Blair has introduced in Britain. Devolution means that the Scottish Parliament (and to a lesser extent the Welsh Assembly -- Northern Ireland is its own story) exercises power over matters that are in the hands of the UK Parliament with respect to England. This raises the question of why Scottish MPs should get to vote on English issues when their constituents will be unaffected. This would become a particularly tricky question if Labour has a majority in the UK as a whole, but not in England, and the Prime Minister of the UK is a Scot (all of which is quite likely in the next Parliament).

Canada has had a version of this problem in relation to the Territories: before self-government gave the Territorial legislatures formal power more or less equal to the provinces, the Federal government had and exercised authority in the North that it could not in the South, but almost all MPs are Southerners. This might be said to be counter-balanced by the disproportionate representation of citizens of the Territories in the House of Commons.

The problem would become more significant if Quebec were given asymmetric constitutional powers. Right now, Quebec operates its own personal income tax and public pension scheme unlike any other province, and has certain other unique administrative powers. But, in theory at least, any other province could exercise the same jurisdictions Quebec does. Asymmetric federalism would create the same problem here that Britain is dealing with.

Matthew points out the problems in a solution that would deprive Scottish MPs of the right to vote on "English" issues. The difficulty is that none of the other solutions work very well either. If England turned strongly against Labour, which is possible, this could cause major problems for the UK.

I think this supports the "Hamdan is a big deal" school of thought. Once the Executive Order is rescinded, military interrogators will have no defence if they commit war crimes. Obviously, that no more guarantees that torture will stop then the Eighth Amendment prevents prisoner abuse domestically. There is absolutely no reason to give this White House the benefit of any doubt. But, still, it is a major victory for the rule of law.

Sunday, July 09, 2006

A bit of background, then the confession and hopefully the absolution.

Those who pay attention to liberal American blogs know that Joe Lieberman is the hate figure of the week. There is a national campaign, heavily promoted in the liberal blogosphere, to support Ned Lamont as his challenger in the Democratic primary for Conneticut senator next month.

Pith and Substance is opposed to Lieberman's pro-Iraq pro-"War on Terror" line. But some of the criticisms are unhinged. One of the nicknames for Lieberman floating around the 'sphere is "Rape Gurney Joe." This refers to Lieberman's opposition to a Conneticut state law that would require Catholic Hospitals with Emergency Rooms to provide "Plan B" contraception in opposition to the Church's doctrine.

Pith and Substance takes a strong line in favour of state funding of religiously-provided social services, and a dim view of the whole anti-Lieberman campaign. So venturing where angels have sense enough not to, I descended into the comment thread.

Alas, unlike Daniel I was quickly eaten by the predators lurking below. I can't help agreeing that no abstract principle - including religious autonomy - can justify sacrificing the real interests of rape victims. (The only thing worth sacrificing to an abstract principle is another abstract principle.) While I would like to think that Lieberman was correct to think that there were alternatives that would have allowed rape victims access to emergency contraception without requiring Catholic institutions to be the ones dispensing it, I don't actually know that it is possible, which means I should have shut up.

Thee Pithlord was raised with the rather vague general confession of the Anglican Communion, and so isn't totally familiar with how to purge the sin of pride (along with wrath, the abiding deadly sin of the blogosphere). Assistance (and reasonably-priced indulgences) are gratefully received.

Modern law is big on disclosure of information, particularly government information. But there are exceptions -- no exception more important (to lawyers) than communications between a lawyer and her client. Documents created in the course of this communication are subject to solicitor-client privilege.

The boundaries of privilege are set by law, and therefore the sort of thing you can argue in front of a judge about. But there is an inherent problem with arguing about whether a document should remain secret. If the lawyer challenging the purported privilege can see it, then it isn't secret anymore. But if she can't see it, then it's pretty hard to argue about. Instead, we end up with something of an inquisitorial system, in which judges themselves read the documents and decide without the benefit of meaningful argument.

The world is an imperfect place, and there is no ideal way of resolving this dilemma. But one judge of the Ontario Divisional Court came up with what looked like an elegant solution. If the person challenging the privilege is willing to (a) have her lawyer look at the documents under a commitment of confidentiality and (b) agree not to use the lawyer except for the argument about the documents, then it looks like most of the interests involved are (imperfectly) addressed.

Today, the Supreme Court, in a judgment authored by the new boy, Marshall Rothstein, said "no" to this solution. Rothstein said that limits on solicitor-client privilege (unlike lesser reasons to keep documents secret) require a showing of "absolute necessity." This looks to the Pithlord like one of the many forms of cost-benefit analysis that courts engage in, but with the thumb placed very firmly indeed on the side of lawyers' secrets.

I don't object to solicitor-client privilege, or to making it difficult to get around. But I object to "absolute necessity" tests, especially for common law rules. Sure, solicitor-client privilege is important. But "informer privilege" (that is-- your right, if you tell the police about what the Hell's Angels have been up to, not to have that revealed to them) strikes me as EVEN MORE IMPORTANT, and doesn't get this kind of judicial solicitude.

In the end, I think the lower court's compromise was sensible, and the SCC had no business overturning it.

The big issue of this term -- whether the Feds can, in deportation proceedings of non-citizens and non-permanent residents, keep information they have as to why somebody is a danger to Canada -- is similar in structure, and the reasons for secrecy are more compelling than for most solicitor-client relationships. It will be interesting to see how the SCC respond.

Thursday, July 06, 2006

Toronto is the *answer?* Weird, no-longer-Canadian, breathtakingly-violent Toronto? The laboratory of your principles?

Whaddya think about Teddy's obvious observation, that you can know *very little* about any culture you're not born into? Doesn't it put the lie to the NDP/Trudeauist notion that if we all just take some classes in Otherness, harmoniousness and the end of war will result? I shall study Somalianism, Bulgarian poetry and something Tibetesque, m'self; but if I really wanna learn, I'll go to those foreign places. Otherwise, I'll dwell in the old land and poetry of my Dominion, and wait for migrants to study me.

Mr. Ted has a good point about how hard it is to really understand another culture. Going to England, or New York made me realize that - close as those cultures are, familiar as I am with their cultural products, there's a gap there. That gap can be understood a bit with education, but not really. And anyway most people aren't that educated. And if there is a gap in comparison to the US and UK, well, what is that compared to Iraq or Somalia?

Just trying to penetrate to the bottom of the strangeness that is English Canada is the work of a lifetime.

But I don't draw the same political conclusions. I lived in Toronto for a total of 8 years. What struck me was how well it worked. Less racial tension than in the relatively homogeneous Victoria of my childhood. This wasn't the leftist part of my brain - which was looking for oppression and conflict. What amazed me was all the people who started some hopeless business, lined up for the TTC and got their kids into U of T.

U of T didn't really have the kind of knee-jerk leftism that UVic had. That was largely because the genuinely diverse population were hostile to it, although more hostile to Quebec nationalism and aboriginal claims for legal difference. Kids born in refugee camps on the border of Uganda and Kenya pointing to the holes in the reasoning of nineteenth century law lords. Which is appropriate enough when you think about it.

Look, I hate cheesy leftist denigration of Western, and specifically Anglo-Saxon, culture and history as much as you do. I'm for Queen and Country, the defeat of the Spanish Armada, sea power, Parliamentary traditions, the common law, and roast beef covered in gravy. I'm for federalism, ice hockey and the state having no business in the grow ops of the nation.

But that culture was always at its best at its most open. We have nothing to worry about in the cultural assimilation game. We've assimilated Germans, Swedes, Scots, Irish, Ukrainians, Japanese, Ismailis, Bulgarians. We can keep it up.

The literatus's comment about "Trudeuaists" makes me realize I need to do a post or two about Trudeau, because there are some awfully strange distortions about what that guy was about floating around on the right. But we can only be just in our time, and the time for writing about Trudeau isn't yet.

Tuesday, July 04, 2006

Theodore Dalrymple in the New Oxford Review, after going on at some length about cooking, bravely declares:

[T}here is no reason at all for us, indeed there is no real possibility for us, to be multiculturalists at home, if by multiculturalism is meant the granting of legal and social equality, recognition and protection to all the customs, traditions, beliefs and practices whatsoever of immigrants, as if multiculturalism were merely a kind of fusion cooking[...]

The reason is because culture is complex, and hard to understand. So immigrants must inevitably adapt to the culture they enter into.

It's all hard to deny, but also hard to see as a serious attack on multiculturalism as she is in fact practiced.

Let's pull the passage apart.

"Legal equality" cannot, of course, be granted to all practices, since some practices may violate the rights of other people. But in a liberal society, it is quite possible to grant legal equality to peaceful customs, traditions and beliefs. We do that indeed.

"Social equality" could mean one of two things. It could mean that there is a social taboo against being rude about people's customs, traditions and beliefs. Or it could mean that all traditions -- from the Anglo to the K'ung! -- are equally prominent in the society. Again, the first is perfectly possible, and largely accomplished in Vancouver or Toronto. The second is, no doubt, impossible, but for that very reason, not something to worry about.

Multiculturalism is just the fact of ethnic diversity plus the norm of liberal tolerance. Are there tensions when that fact and this norm are put together? Sure. Are these tensions unmanageable? Toronto says otherwise.

The comment thread on publius's declaration of democratic process theory has gotten into some fundamental issues. Coincidentally, Larry Solum has posted a Legal Theory Lexicon item on legitimacy, in which he concludes that the concept is undertheorizd and dangerous. All of which inspired me to put down my thoughts on the subject, largely stolen from David Hume.

The first impulse of any lawyer in coming at a question is to try to shift the burden of proof. So that's the first thing I'm going to try to do. I want to establish that the burden of persuasion is always on those who call the status quo "illegitimate". Here goes:

Legitimacy is the flipside of revolution. Clearly, if a revolution is justified, then the existing order must be illegitimate. On the other hand, if the status quo is legitimate, then revolution would be unacceptable. So I'll stipulate as a definition of "legitimacy" that quality that can be ascribed to a regime when revolution against it is wrong.

Revolution is like war in that its direct consequence is the foreseeable and typically intended death of human beings and its indirect consequences are typically far-reaching but unforeseeable. It follows, I think, that there should be a presumption against revolution, as against war. The absolute pacifist position -- that war and revolution are never justified -- may be utopian, but they obviously have greater appeal than the opposite position that we should be in perpetual civil and international conflict.

It follows, therefore, that there is a presumption against revolution or, equivalently, a presumption of legitimacy. As Thomas Jefferson, in a statement against interest, put it:

Now, I share Yglesias' skepticism that the British Crown in the 18th century was in fact engaged in a long train of abuses and usurpations, with a design to reduce white Protestant American colonists under absolute Despotism. Au contraire. If you read the particulars appended later in the Declaration, they are either not very oppressive at all (like giving Quebec the right to use the Civil Code, or guaranteeing traditional Indian lands), grossly exaggerated ("He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages") or pretty darn vague ("He has refused his Assent to Laws, the most wholesome and necessary for the public good").

But, merits of his case aside, I'm willing to grant that in this part of the Declaration, Jefferson gets the issue right. The question of legitimacy is a question of practical judgment: is the regime so bad, so thoroughly beyond reform, that revolution is a lesser evil?

A regime need not be particularly democratic to be legitimate. Indeed, its legitimacy may depend on what the consequences of revolution are likely to be: if particularly bad, then even a lousy regime may become legitimate. In fact, if you accept the prudential judgment of the ancients that a democracy unmitigated by elements of aristocracy is particularly likely to fall into tyranny, then a regime can be more legitimate when less democratic.

Using this yardstick, the legitimacy of judicial review seems like a more easily resolved problem. Judicial review only becomes illegitimate when it creates sufficiently great degree of tyranny to justify a revolution. Few of us think that judicial review in either Canada or the United States has got to that point. (Those who do are advised to confine themselves to peaceful propagation of their insane belief system.)

Have I cheated here? Do people who ask about the legitimacy of counter-majoritarian judicial review really want to know whether it justifies revolution?

Maybe not. Maybe they just want to discuss what (normatively) is the best approach the courts should take to judicial review. Or what role it should play in the ideal constitution. Both interesting questions, but not, as I've defined things anyway, questions about legitimacy. The US and Canadian Constitutions can be legitimate if non-ideal. However, this Tory point prevails: improvements that aren't possible within their structure are to be abandoned if they don't justify revolution. Improvements that are possible within their structure should be discussed as possible reforms, and their costs and benefits worked out.

The unbrilliant Alberto Gonzales, Attorney General of the United States, has responded to the Hamdan decision by (a) denouncing it; and (b) telling the world that the US has no intention of abiding by the Common Article 3 of the Geneva Convention, as interpreted by its own highest court.

The motivation here is obviously domestic politics, of the most disturbing kind.

The ball is now with the rest of the democratic world. We can fight knee-jerk nationalist politics with knee-jerk nationalist politics of our own. We have to demand that our governments cease co-operation with the "War on Terror" until the US agrees to abide by its treaty commitments. Those are treaty commitments to us, as signatories to the Geneva Conventions.

The Harper government, for one, could be vulnerable on this. Write your MP.

Update: The domestic politics for the administration may not be as simple as all that. According to an ABC-Washington Post poll, 71% of Americans want to either charge the Gunatanamo detainees or give them "POW status". That's slightly confused, and is not directly on point for Hamdan, but it shows a rejection of the quasi-fascist "demanding due process is disloyalty" line Gonzalez has gone public with. Of course, at this point, the GOP may be most concerned with giving its base a reason to get out to the polls in 06. I doubt this will be another khaki election. Unfortunately, I also doubt the intestinal fortitude of the Democrats.

One of the interesting effects of the Iraq war debate has been to give war opponents -- most of them pacifists, leftists or internationalists -- more of an understanding for traditional realist views of foreign policy.

Most conflict, most of the time, is not about ideology, but about ethnic identity and resources, especially land (blood and soil).

The first genuinely ideological wars started with the expansion of Islam. Christianity and Islam are both very clear about the insignificance of tribe in comparison to belief. Same with Protestantism and Catholicism. Then we get the liberal wars and revolutions of the nineteenth century and the Cold War. But even, in these conflicts, the Crusaders sack Constantinople, Protestant English and Dutch fight about the wool trade and Nixon goes to China. In other words, even when there is a clear ideological division -- which everyone involved theoretically considers more important than tribe -- tribe often wins out.

Most people are comfortable with this. But there are always a few ideologues who thrill to fighting for an idea, but do not like fighting for revenge or conquest. But after the Cold War, it was hard to justify conflicts in terms of ideology, although some saw a universal regime of human rights as a basis for intervention. Others, on the right, were nostalgic for the old Cold War and looked around the world for plausible candidates for a new one.

Then came September 11.

I suspect most Americans viewed the Iraq war as payback against Arabs for an Arab attack on them. The logic is genocidal, but it is also perfectly human. But you can't quite come out and say things that crudely. So we had to have a justification that foreign policy elites would find acceptable, and hit on nonproliferation.

The lack of WMDs then drove war proponents to a Trotskyist explanation of their support for the war: it became the duty of the United States, as a proposition nation, to extend the democratic revolution to the ends of the earth. Ethnic conflicts (like those between Israelis and Palestinians) are shoehorned into an ideological framework.

The difficulty is that a democratic revolution in the Arab world will mostly benefit anti-Israeli Islamists. The Arab world is not Eastern Europe in the seventies, with an opposition centered around novel-writing bohemian liberals. Such people exist in the Arab world, but they have no popular base at all, and are more likely to survive with traditional dictators than with a genuinely popular regime. With the election of Hamas, it became impossible to ignore this reality.

It is still possible to believe that Islamism will only be a stage in the democratic development of the Arab world. Islamists in power will lose their appeal Maybe we are seeing that right now in Palestine (although the latest Israeli invasion is bound to polarize things again).

But if we accept this, then we are imagining a war -- in retaliation for Islamist attacks -- designed to put Islamists in power to further the development of history. Dialectical thinking becomes madness.

The realists and isolationists at least have this going for them -- if the West can't know what to do, then surely it is better to do nothing. The Arab world is bound to go through turmoil -- so we are better off not to have a direct hand in it. If the cunning of reason works out in the end -- if it is really everyone's destiny to become a contented bourgeois liberal democrat -- then it can do its work alone. If not, well then we are better off without that particular illusion.

Sunday, July 02, 2006

Publius has published some thoughts on judicial review, Hamdan and Roe that are bound to annoy his liberal readership.

Publius has been pondering the lawless Bush v. Gore decision, and it has driven him to a concern about judicial tyranny. Publius recognizes that it is not enough for the left to say that judges should make more left-wing decisions: there needs to be a theory of what is a legitimate constitutional decision, and it needs to be distinct, at least in principle, from his own policy preferences.

If you are interested in this sort of thing, go read publius. If it helps, he is chanelling John Hart Ely. Basically, the idea is that the courts can legitimately help those, and only those, who are not adequately represented in the ordinary political process. And, to the extent possible, the courts should do that by improving the process so that they are better represented. For Canadian readers, Patrick Monahan in Politics and the Constituion argued that Ely's book was a better theory of Canadian constituional law than of American.

Anyway, I reproduce my response to publius in his comments box, because, like him, I have a mad ambition of coming up with a coherent way of thinking about constitutional law.

One thing that troubles me is your automatic democratic-nationalist assumptions. You start from the assumption that what the national majority wants, the national majority should get. Why? What is so special about that particular numerical majority?

I would prefer to invoke the concept of subsidiarity. The (local) state exists for a reason: to perform those coordinating functions individuals and the smaller institutions of civil society can't do for themselves because they don't possess coercive authority. The (national) state exists to perform those coordinating functions that the states can't because they don't possess authority over each other.

At each level, there is a practical judgment about what kinds of power are necessary to perform the requisite functions. These judgements cannot themselves be made democratically, because they are about which of equally democratic forms of decision -- individual, state or national -- should take place.

While I think this sort of framework is closer to the "framer's intentions" than an absolute democratic-nationalism, I don't pretend that the problems of every generation will be resolved for all time by the thinking of previous generations.

So what prevents judicial tyranny, the problem that bothers you? Nothing (other than perhpas the reality of power politics) prevents it if the judges lose all judicial virtues. But if they are minimalist -- willing to resolve only actual conflicts presented to them, and then only on the basis of case-specific reasons, then that tyranny can be mitigated.

The Bush administration sent out a trial balloon today. A "Senior Administration Official" suggested that the Republicans might run in 06 on the slogan, "Are you willing to give terrorists the same rights as our boys and girls in uniform?"

Note that the "rights" in question are given to servicemen and women their commanders think have violated military law. A Marine accused of selling a military secret to Al Qaeda would have these rights. A soldier accused of fragging an officer would have these rights.

Note also the shameless willingness to put short-term partisan advantage over the Constitution, America's solemn international commitments and the effective fight against terrorism. We may be used to it, but it doesn't make it any less shocking.

God knows that enemies of the Bush administration overuse the term "fascist". Rove knows that this only damages them politically. But what, then, do we call the theme that the acceptance of constitutional constraints, the very idea that the state is subject to law, just shows insufficient loyalty to the nation? "We must be as ruthless as our enemies. We cannot -- in this new era -- accept the niceties of procedural rights." The confidence that the public will regard law as weakness, what else can we call this confidence?

This may be the most significant case from that Court since Brown. More when I've read it.

Update June 30: I'm still slogging through it, but better minds than mine have already commented. The best discussion in the blogosphere I've seen so far is a panel discussion recorded at the Georgetown University Law Center Faculty Blog. The last post is here.

The most important point I can make on our ongoing "how big a deal is this" debate is that while Congress could override this decision, it could only do so by repudiating the Geneva Convention. I don't think that is a realistic possibility. I am not competent to analyze the domestic political consequences, but I can say that every democratic ally -- even Blair, Harper and Howard -- would have to run for cover if something like that happened.

*Let me start with the Senior Administration Official, because this is going to dictate how things play out. The SAO takes(I think rightly) the most significant holding of the case to be that the Geneva Convention requires that captured enemy irregulars be tried with the same protections available to the capturing country's own soldiers when they are accused of violations of military law, except to the extent that practicalities dictate otherwise. That's more significant than the strictly statutory holdings, because, while statutes can be amended, America's allies are not going to let it simply ignore its own court's interpretation of the Geneva Conventions. The SAO indicates that the Administration is going to go to Congress to "fix" things, but seems aware that whatever arises is going to be scrutinized by allies for compliance with Common Article 3.

Any Democrats who are willing to take a stand on this (and Pith & Substance salutes you) could emphasize the damage to the fight against terrorism if other countries cannot legally cooperate anymore. That is a real possibility: the SCOTUS will have emboldened everybody else.

*The key procedural protection that American soldiers have when facing courts martial that the alleged al Qaeda people do not is that American soldiers and their lawyers have a right to be present to hear all the evidence against them. This is at the core of a fair trial, since it is pretty hard to challenge evidence you don't know about. (Canada is going through the issue of whether we can deport non-citizens based on undisclosed evidence -- just to show my anti-civil libertarian bona fides, I think we can, but it would be a different thing to convict somebody on that basis.)

*I have to admit that Scalia gets the better of the argument about whether the Detainee Treatment Act of 2005 was intended to deny the federal courts, including the SCOTUS, jurisdiction over pending cases. It obviously was. It would have been intellectually more honest for the plurality to strike down those provisions of the Detainee Treatment Act as unconstitutional.

*However, I agree with Charley that Scalia's opinion becomes less and less convincing as he agrees with every one of the hurdles the government put in the way of getting this issue decided on the merits. He had a (terrible) statute on his side. Rhetorically, he should have stopped then.

*And the plurality gets the better of Thomas on the crucial question -- should the court defer to the executive's assertion of what military necessity requires. Not in this kind of case -- Hamdan is in custody, fighting is over, and the issue is what kind of process is necessary before he can be convicted and punished for things he allegedly did in the past. That is right in the heart of the judicial province.

*The biggest implication of this case is undoubtedly that it buries the Yoo/Schmitt/Bush theory of the unlimited authority of the commander-in-chief. Since that is scarier than anything else Bush has done, that's good. The second biggest implication is that the Common provisions of the Geneva Convention apply. Interestingly, no one -- not even Thomas or Alito -- came out and disagreed with these points.

*Kennedy seems like a pretty sensible guy. I'm glad he is the all-powerful philosopher-king of the United States right now.

*Finally, I want to point out that one of my commenters on this post -- Charley Carp -- was actually there, in the Supreme Court building, and in a professional capacity, when the opinions were being read. How cool is that?

Yet another update: Charley leaves the following comment:

The thing about the DTA argument is that you had two principal authors of the effective date provision, and each thought he'd tricked the other with the language he got through. Everyone in Congress knew that this is what was going on -- Graham trying to kill the cases, Levin trying not to kill them -- but Graham's passivity during the actual debate appeared to me, at the time, to be calculated to let Dems believe that maybe Levin was right, and thus vote for the thing. Then Graham put his statement to the contrary into the record after the debate.

You might agree with Graham (and Scalia) on the statutory issue regarding the effective date provision, but I think the Suspension question is a really different kettle of fish. Scalia's opinion on this shouldn't get anywhere with you. First, Rasul has surely very substantially undercut Eisentrager with respect to the applicability of the Constitution to Guantanamo, and second, while I suppose it may be arguable that the remedy afforded Salim Hamdan is a closer substitute, the remedy afforded everyone else is absolutely not. So we'd have to analyze this as a Suspension, and looked at as one, it fails utterly.

The Pithlord has "blogosphere rules" expertise on these sorts of questions (which, is to say, no expertise at all-I read the decision and have some vague memories of a comparative constitutional law course a decade ago, which, needless to say, did not get into the Suspension and Exceptions clauses). But what Charley says makes sense to me.

On the legislative history front, I share some of Scalia's skepticism about its usefulness. But if any statement is useful, it is a "statement against interest" by an author designed to answer objections to legislation. Court should pay attention to those. As Charley tells the story, both Levin's statement and, even more significantly, Graham's initial silence, may be in that category.

Still, all in all, I think Scalia gets the better of the statutory construction argument. Which means the court should have dealt with whether the DTA, as Graham interpreted it, is an unconstitutional suspension of habeas corpus. Here, I agree with Charley. Rasul quite correctly held that the US has sovereign jurisdiction in those places where it, you know, exercises sovereign jurisdiction. Eistentrager has already been overruled if it means that habeas is not available in America's colonies. And I agree with Charley about the weakness of Scalia's "alternative remedy" point.

Which leaves the "Exceptions" clause. This clause gives Congress some power to provide for "Exceptions" to the SCOTUS's jurisdiction. I'm certainly not up on this case law, but Scalia admits that he is fighting against it. In his opinion, he once again claims that there is an adequate alternative remedy, which would allow the Exceptions clause to function. But there isn't, so the DTA is unconstitutional.

Saturday, July 01, 2006

One issue about Hamdan that I have not seen discussed much is the plurality's ruling that conspiracy is not a war crime. Kennedy didn't join in this part, and it is arguably dicta. But it is slightly troubling, since it might make those involved in planning and giving logistical support to war crimes immune, at least if they didn't directly give orders or do the shooting. I'm not sure that this part of the decision will be followed internationally.